Case Number: BC658407 Hearing Date: June 01, 2018 Dept: A

Meggs v NBC Universal

MOTION TO COMPEL FURTHER

Calendar: 5

Case No: BC658407

Hearing Date: 6/1/18

Action Filed: 4/18/17

Trial: Not set

MP:

Plaintiff Camille Meggs

RP:

Defendant Arutyun Adzhemyan (untimely)

ALLEGATIONS IN COMPLAINT:

Plaintiff Camille Meggs commenced this action on April 18, 2017. The action was removed to the Central District of California, and Plaintiff filed a First Amended Complaint (“FAC”). The case was remanded back to state court.

Plaintiff is an African American woman, who has been employed by Defendants NBCUniversal Media, LLC, KNBC, and NCB Universal, LLC since 1999. She alleges she sent a letter of complaint on September 28, 2016 to human resources, regarding a pattern of racist and sexual conduct in the KNBC newsroom. On January 18, 2017, human resources contacted her saying there was no discrimination. Then, on January 19, 2017, Plaintiff alleges she was assaulted by security guard, Defendant Arutyun Adzhemyan.

She alleges various causes of action for FEHA violations, assault, battery, false imprisonment, IIED, and negligent hiring, supervision, or retention.

RELIEF REQUESTED:

Plaintiff moves to compel further responses to form interrogatories (“FROG”), set one, served on December 5, 2017 against Defendant Arutyun Adzhemyan.

DISCUSSION:

Plaintiff moves to compel further responses from Adzhemyan for FROG nos. 12.1 and 12.3.

Plaintiff propounded the FROG on Adzhemyan on December 5, 2017 by mail. On January 5, 2018, Adzhemyan served responses. Adzhemyan then provided amended responses on March 28, 2018. Thus, this motion is timely.

Preliminarily, the Court addresses Adzhemyan’s argument in opposition regarding the discovery referee. Adzhemyan argues that this motion is improperly before the Court because on January 30, 2018, the Court appointed Retired Judge David S. Milton as the discovery referee for this action. Costs were to be advanced by Defendants subject to re-allocation. The Court referred “Discovery Motions” to the discovery referee. However, the January 30, 2018 did not state that all discovery motions in this matter would be referred to the discovery referee; rather, the minute order appears to reflect that the discovery motions that had been filed up to the January 30, 2018 OSC date were subject to the purview of the discovery referee. This is confirmed by the Notice of Ruling filed by Defendants, stating that a referee had been appointed for “currently pending discovery motions.” (See Smith Decl. re Reply at Ex. 1, ¶1.)

As such, the merits of this motion to compel further responses will be considered by the Court.

FROG 12.1 asks that Adzhemyan provide the name, address, and telephone number of each individual: (a) who witnessed the incident, (b)-(c) who made or heard any statements at the scene, or (d) who has knowledge of the incident. In his initial and amended responses to subsection (a), Adzhemyan identified himself and several individuals, including Silvia Chuc, Wilbert Lazo, Carmen Silva, Delia Jimenez, Marilyn Sanchez, Geroge Farrugia, Michael Rubio, Eric Perez, and Yolanda Martinez, all who can be contacted through his counsel and counsel for Securitas, Carol Humiston. For subsections (b) and (c), he identifies himself. For subsection (c), he identified those in subsection (a) and Jason Collins, Robert Romo, and Dennis Hathaway, who can be contacted through Carol Humiston.

In his responses, Adzhemyan fails to answer each portion of the FROG, which asks for the name, address, and telephone number of each individual. Since Adzhemyan did not raise any objections (i.e., privacy, privilege), Adzhemyan should respond to this FROG. As stated in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249, “Central to the discovery process is the identification of potential witnesses” and the disclosure of their names and addresses is a “routine and essential part of pretrial discovery.” (Id.) As such, this FROG should be responded to fully without objection. To the extent Adzhemyan does not know the contact information of the persons identified in his responses, he should provide a code compliant response stating as such. (See CCP §2030.220(c).)

FROG 12.3 asks if Adzhemyan or anyone acting on his behalf obtained a written or recorded statement from any individual concerning the incident and, if so, for each statement state: (a) the name, address, and telephone number of the individual from whom the statement was obtained; (b) the name, address, and telephone number of the individual from who obtained the statement; (c) the date the statement was obtained; and (d) the name, address, and telephone number of each person who has the original statement or copy. Adzhemyan objected to this FROG on the basis that it seeks attorney-client communications and attorney work product. Without waiving objections, Adzhemyan states he submitted a statement and all other statements were made by Securitas employees for counsel for Securitas. He responds that he did not take any statements.

The attorney-client privilege is a privilege to refuse to disclose, and to prevent another form disclosing, a confidential communication between the client and the lawyer. (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1521.) “‘Confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Id.)

The attorney-client privilege does not apply to this FROG. The privilege only protects disclosure of communications between an attorney and client, but does not protect the disclosure of underlying facts nor does it protect independent facts related to a communication, that a communication took place, and the time, date, and participants in the communication. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639-40.) As such, the FROG does not seek privileged information regarding the communications made between a client and an attorney; rather, it seeks information if any such statements were made and who made them.

Attorney work product doctrine includes, “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (CCP §2018.030(a).) Adzhemyan has not shown that the attorney work product doctrine applies. While a list of potential witnesses that counsel interviewed and recorded in notes might tend to reveal counsel’s evaluation of the case (see Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217-218), the Supreme Court in Coito v. Superior Court (2012) 54 Cal.4th 480, 499 rejected the notion in Nacht that recorded statements taken by counsel would be protected by the absolute work product doctrine. At most, the Supreme Court found that the witness statement is entitled to at least qualified work product protection. The Supreme Court went on to discuss FROG no. 12.3 and how in certain specific circumstances a response to no. 12.3 may reflect counsel’s premeditation and selectivity in choosing witnesses; however, the Court held that compelling a response to no. 12.3 is unlikely to violate the work product privilege and stated that no. 12.3 is not automatically entitled as a matter of law to absolute or even qualified work product privilege. “Instead, the interrogatory usually must be answered.” (Coito, supra, 54 Cal.4th at 502.)

Here, the discovery sought in no. 12.3 is relevant to this action and is ordinarily information that may be discovered. In addition, Adzhemyan has not made a preliminary or foundational showing that answering no. 12.3 would reveal his counsel’s tactics, impressions, or evaluation of the case, or would result in Plaintiff taking undue advantage of Adzhemyan’s counsel’s efforts. Accordingly, the Court will grant the motion to compel further responses to FROG 12.1 and 12.3.

Plaintiff does not request sanctions in connection with bringing the motion.

Adzhemyan requests sanctions in the opposition. In light of the ruling above, that request is denied.

RULING:

Grant the motion to compel further responses to FROG nos. 12.1 and 12.3. Adzhemyan is ordered to provide code compliant responses without objection within 20 days of notice of this order.

Deny Adzhemyan’s requests for sanctions.